All persons having business before the Honorable Supreme Court of United States landmark cases, cspan special history series produced in cooperation with the National Constitution center, exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Number 759 we will hear arguments from number 18 quite often in many of her most famous decisions, are ones that the court took that were quite unpopular. Lets go through a few cases that illustrate, very dramatically and visually, what it means to live in a society of 310 million different people who stick together because they believe in a rule of law. Susan good evening and welcome to cspans history series, let marquesas. Tonight is number 10. You will hear about the 1962 tennessee reapportionment case. It was one that chief Justice Earl Warren called the most important of his tenure. This is the court that wrote brown versus board of education and we will learn wider the next 90 minutes. It began a reapportionment revolution that change the way that allocation was for the state legislature and congress, which is all about power. We will learn more from our two guests. Theodore olson, from the u. S. Solicitor general, 20012004 has argued 60 cases before the Supreme Court including the 2000 bush versus gore case. Douglas smith is a Nonfiction Author and is the executive director of the Los Angeles Service academy and he has written a book on this case called on democracies doorstep. Thank you for being here. We will begin tonight by listening to chief Justice Earl Warren in his own words talking about the importance of this case to the country and to the court. This court found that the question of whether a person was having equal protection of the laws was a judicial question and we have the right to decide it, and we have the legislature give equal representation to everyone. That is the expression, one man, one vote, came into being. In that sense, i think that that case, and the others that followed, is perhaps the most important case that we have had since ive been on the court. Susan so, ted olson, why was the chief justice thinking of this as the most important case . Ted the decision in this case opened the door for the change in the way we govern ourselves. States had apportioned power in their state legislatures according to various different methods that, in many cases, wound up with much more power in Rural Communities than in urban communities. As population grew in the cities, the Rural Communities gained more and more strength so that the power in state legislatures was confined to a smaller and smaller number of people, in terms of their representation. So, changing how that was done changed how we are governed in this country in a dramatic way. We can only imagine how a state like california, today, would look like if the rural counties, which are very sparsely populated in the north and the eastern parts of the state, would govern what happened in sacramento as opposed to the people in los angeles or san francisco, having an equivalent vote. They did not then. This changed all of that. Our country would be so different today. Susan the chief justice made reference to the famous phrase one man, one vote and it is often associated with this case but it is not associated with this case. Explain what this case really did. Douglas this case very simply, said that federal courts could not consider challenges to state reapportionment. It did not set a standard. They did not say that the legislature ought to be apportioned according to any particular principle. It merely stopped short of saying anything else. Federal courts had jurisdiction to hear these. We saw the demographic change in the 20th century and it was extensive. There are 6 Million People in los angeles who had the same amount of representation in the state senate as in rural parts. It was quite dramatic. Susan it seems obvious, but would you have put this on a landmark cases list . Susan absolutely. Theres nothing in the constitution that says that state legislatures have to be apportioned according to population. In fact, the u. S. Congress and the senate is not done that way, so it is embedded in our constitution that while the congressional districts, as it turned out, would be apportioned that way, nevada has two senators and california has two senators. That disproportionate relationship between population and vote is embedded in the constitution. The justices had to decide, first of all they had to decide as they did in this case, we can actually hear the case because prior to that, the court had render decisions saying that it is none of our business. We cannot find in the constitution a principle that we are going to apply here. Where is it . Once they decided in baker versus carr that we could actually look at this under the 14th amendment. That opened the door to the subsequent decisions, but it was not selfevident. A lot of people were starting to agitate. For proportionate representation in the state legislatures. It was not by any means clear that this is going to be the outcome of that case. Douglas this situation becomes so severe by the late 1940s and 1950s and all across the country, it was not just municipal officials, you had organizations that were all over this issue like in states in minnesota and tennessee. The league is doing all sorts of work at the local level and up to the state level and it goes before the Legislature Time and time again saying that they must do something about this. Cities like nashville and memphis and minneapolis were not getting the money that they needed from the state legislature for roads or education, social services, and they were quite starved for funds. It became a serious problem. Ted the minorities were concentrated in our urban areas. They were not the farmers. To the extent that africanamerican voters or immigrants and poor people were concentrated in the cities with industrial jobs and so forth, their power was getting more and more diminished. At the expense of the people in the less populated communities who are mostly white. They were having more and more power. It was becoming more and more untenable. Susan once the Supreme Court opens the door to hearing cases about reapportionment, they heard many more in the decades since, tonight we have a live camera at the Supreme Court and you will be seeing pictures from throughout our program because tomorrow the court is scheduled to hear another apportionment case. It is a texas case that could further determine the definition of one person, one vote. What is it all about . Ted it is very interesting, everybody thinks one person, one vote. But what is one person . Can you divide up a district . Are you counting the actual number of people that vote . Are you including immigrants . Are you including people of voting age . The Supreme Court is going to hear an argument tomorrow in this case in which the argument is being made that we can divide up and meet the constitutional requirements by accounting people of voting age population. As opposed to all people. That makes a big difference because some people dont vote. People that are immigrants do not vote. People that are children dont vote. And in some areas, and this case in texas, some counties in texas or in some districts in texas, have a larger percentage of people who are signed up to vote or of voting age and in other areas. There can be a disproportionate account. This issue has not come before the court before. What is it when you say one person . Who are the persons were in the denominator . Douglas to make it clear, the key issue tomorrow is that the petitioners from texas are asking the court to require that states a portion based on the number of voters, not allowing it to be an option, but to require it, which is without precedent. That would be quite staggering. Susan no cameras in the Supreme Court. But, there is audio recordings. At this point in our series, we have begun to work them in. Youll hear some of them. Tomorrows case, well have the audio available when the Court Releases it. Ted it was not until relatively recently that the audio became available immediately after the argument. I think that is what it is probably tomorrow. It is not contemporaneously, am i right . I think the bush versus gore case was the first time that the actual audio became available in instant that the argument was over. That was 15 years ago. Susan we, along with other people in the media petitioned the justice to open that case that. We do not want to get too much ahead of ourselves, let us set the stage in a little more detail about the baker versus carr case. So, we talked about the rising urban populations after world war ii. And the fact that there were tensions between them. Heres the separations of power question. It was left to the state legislatures, the people that had the power would have to make the decision to give it up and that does not often happen in congress. How could society or the court system or legislatures expect to address this . Douglas you are exactly right. You are essentially asking legislators to give up their seats to somebody else. State courts would consistently hear cases and say no, yes it is a big problem, but no, we cannot do anything about it. Only the legislature can fix it self. That was essentially the way things worked, especially after 1946 when the Supreme Court and the case said that the federal courts cannot get involved. That was the case i really kept the federal courts out of reapportionment politics until the 1960s. They simply were not go near it. Susan in tennessee the legislative district had not been redrawn since 1901. Douglas the Tennessee State institutions said very clearly that you have to reapportion every 10 years but they had not done it for 60 years. Ted the question is what our federal courts telling the state of tennessee. You have to do something about enforcing your unconstitutional provisions. Federal courts do not normally do that. They say, if this is an issue of the state of tennessee not having complied with its own constitution by not having reapportion every 10 years, what business is it of the federal courts . Susan to make the point as we have been learning throughout the series, there is a gradual application of the 14th amendment to more and more areas in the state and this is another case where that began to happen. Ted not so much of the 14th amendment that tennessee had to comply with its constitution, but tennessee had to comply with the 14th amendment with respect to whether a vote in one persons vote was equal to another persons vote. Douglas that was essentially the state of tennessees defense was yes, malapportionment in tennessee is bad, but it is nobodys business but tennessees to fix it. Susan you have given a nice introduction. Heres the first bit of audio. To get a flavor for the argument here it these are the two attorneys arguing the case. One is bakers attorney. And youll hear from the state of tennessees attorney who was the assistant attorney general, jack wilson. Lets listen to a little of their argument in this case. I say there is nothing in the constitution of the u. S. That ordains and nothing in the constitution of tennessee that ordains that State Government is and must remain an Agricultural Commodity and there is nothing in either one of those constitutions that says it takes 20 City Residents to equal 1. The legislature of tennessee not to reapportion, or is it worth the Federal District court to violate the angel doctrine of separation of powers . Susan you hear the arguments. The court has no jurisdiction over this. We have a map that was used to make the argument. I want to show it to the audience at home so they can release the what is happening with the legislative districts in tennessee and how 2 3ds geographically of the state versus the concentration of power was presented to the court and have the population had really shifted on the power shifted with it. How were the documents used in this case . Douglas it was originally filed in 1959. They actually used an enormous amount of data from the census, although it was not actually until later on in the process when a city of nashville came into the case and provided a lot of Financial Resources that the attorneys were able to employ a lot of that data. In the early stages, they did not do a whole lot. There were basic maps that show which counties had 20,000 people and another county was 200,000 people. It was fairly basic at the initial level. Susan as you have been watching along the way, you know that one of the things we like most about this program is her participation. There are several ways that you can do it. You can call us and the lines are divided geographically, 20274888900 and 2027488901. You can also tweet us. We also have a facebook page. Well mix comments in as well. Youre welcome to get your phone calls in and we will work them and with our special guests. I want to tell the audience that this has been a story about a people story as much as a legal story. In this case, aker and carr are somewhat lost to history. They are not the main case. But we will hear about, and this is really the drama at the Supreme Court, it will, and you tell us later on that there were two justices who were so impassioned about this. We are going to first learn about baker and carr. Then we will learn about the makeup of the Supreme Court and why became so important. Who is baker and who is carr . Douglas they did not have much to do with this at all. They were not active with groups in tennessee. The chairman of the Republican Party and other officials were named. Baker happened to come first. He had a local appointment in the memphis aria. He had actually nothing to do with the case other than the fact that he agreed to be signed up as one of the plaintiffs. Susan he really did not go down in history books. We were trying to do research and it was hard to find. You probably have the same issue. Douglas i never spent much time trying to look for him, because it was pretty clear early on that he had very little to do with it. Carr was the secretary of state of the tennessee. He did not have anything to do with it. He was a nominal defendant. He brought a case against the state. Susan explain the process, mr. Olson, we heard the u. S. District of tennessee dismiss the case on two grounds since 1959. The court lacked jurisdiction. Because it was a political question and complaint failed to state a claim on which relief could be granted. With that finding, how does the case make it to the Supreme Court . Ted this is a appeal if i remember correctly. From the threejudge District Court. They appealed to the United States of record. Today, most of the cases that wind up in the Supreme Court are petitions for review. The court cannot take the case and in many cases, does not take a case that has been presented to it. The court get Something Like 9000 petitions a year and winds up taking 75 cases. This is in a different era when the court had less discretion with respect to whether or not to take a case. So, it was an appeal within the courts jurisdiction and the court had to decide whether it had jurisdiction of the case or not. But it did decide that it did have jurisdiction, notwithstanding the earlier case that doug mentioned where the court had said we have nothing to say about stuff like this. Susan also between 19591961 there was a president ial election and a change in power with president kennedy coming into office. Was the kennedy administers and interested in this case . Douglas they were, very much so. As a candidate, as early as 1959, john kennedy spoke a lot about urban underrepresentation. One have the Staff Members offered a piece which really talked about how much cities were being shortchanged. The Kennedy Administration was deeply interested, but it is crucial with this case to knowledge that the Eisenhower Administration was just as interested. When the case comes to the Supreme Court, it is filed in may of 1960, knowing at the time we know now, that the court decided to hold it until they made a decision in the racial gerrymandering case from tuskegee. When they hand that decision down in november of 1960, a week later, they cite jurisdiction and baker versus carr. Before Eisenhower Administration left, leaving they decided to join the case. That decision was not binding on the Kennedy Administration, but they were quite happy to do so. This is a really important point about how it had a big impact on potter versus stewart. They found out that the Eisenhower Administration have been ready to support this as well. Susan we have forewarned court cases and are 12 part series and one of the things that we have learned about this case is that actions on this court and how important they are to the ultimate outcome as they always are. Particularly, we want to talk about the relationship between earl warren and William Brennan who writes the opinion in this case. We have a reflection on that from a gentleman who served as one of Justice Brennans clerks. He became a federal judge. We listen to them talking about chief Justice Earl Warren and Justice Brennan and their personal and professional relationship. The chief